Jane Njeri Ikigu v Tuwan Farm Limited & another [2019] KEELC 1188 (KLR)
The bottom line
#A Kitale court stayed only the sale of disputed land, not the whole judgment, because the losing party never occupied it.
What this practically means
#Executive summary
#Key legal issues
#Existence of an appeal as a threshold for stay
A filed notice of appeal suffices to show an appeal is in place under Order 42 rule 6(4), allowing the court to consider the merits of the stay application.
The court examined the record and noted a notice of appeal dated 23/7/2019 filed on 25/7/2019, seven days after the judgment. Under Order 42 rule 6(4) an appeal to the Court of Appeal is deemed filed when notice of appeal is given, so the threshold condition was met and the court proceeded to consider the other grounds.
Substantial loss
Having found the applicant was never in possession, only the risk of disposal of the suit land could constitute substantial loss; the respondent's undertaking not to dispose of the land and to surrender titles to court staved off that risk.
The judgment under appeal had found the plaintiff in possession since 1981 while the 2nd defendant was not in possession. Without possession, the only loss the applicant could suffer was disposal of the land. The respondent's undertaking not to dispose of it and readiness to surrender titles to court was held reasonable enough to avert any risk of loss, so only a limited stay was warranted.
Unreasonable delay
An application lodged 13 days after judgment was filed timeously, satisfying the requirement of no unreasonable delay.
The judgment was delivered on 18/7/2019 and the application lodged on 31/7/2019. The court found the 13-day interval did not amount to unreasonable delay, satisfying the second condition under Order 42 rule 6.
Security for due performance of the decree
Failure by the applicant to offer security is not fatal; the court may itself impose suitable conditions, and here the only obligation on the applicant was costs and compliance with an injunction.
Relying on its own earlier decision in Obed Readon Onyango v Florence Juma Nabiswa & another, the court held it is not fatal for an applicant not to offer security since the court may impose it. The judgment appealed from placed no responsibility on the 2nd defendant to perform the decree except payment of costs and abiding by a permanent injunction, so conditions were attached instead.
Legal principles established
#- Where the applicant is not in possession of the suit land, the risk to be addressed on stay is disposal of the property, and a stay limited to restraining disposal, coupled with undertakings and conditions, suffices.
Court orders
#- 1.A stay of execution issued restraining the respondent from in any way disposing of the interest in the suit property pending the hearing and determination of the intended appeal
- 2.The stay is conditional on the applicant filing and serving the record of appeal within 45 days and payment of the taxed costs of the suit due to the plaintiff within the same period, in default of which the stay order will lapse
- Jurisdiction invoked
- Order 42 rule 6 of the Civil Procedure Rules 2010 and Section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jane Njeri Ikigu v Tuwan Farm Limited & another [2019] KEELC 1188 (KLR)", Case Analysis (2019). Application dated 31/7/2019 in Kitale ELC Case (judgment delivered 18/7/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1188/eng@2019-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.